Implex (Pvt) Ltd. & ANR. Vs. Athul Kapur & Ors.  INSC 1348 (31
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4960 OF
2009 (Arising out of SLP (C) No.8599 of 2006) M/s. John Impex (Pvt.) Ltd. &
Anr. ... Appellants Versus Athul Kapur & Ors. ... Respondents
Defendant in the suit is before us aggrieved by and dissatisfied
with a judgment and order dated 12.01.2006 passed by a learned Single Judge of
the High Court, Delhi in FAO No.50 of 2005 whereby and whereunder an appeal
preferred by him under Section 104 read with Order XLIII Rule 1(d) of the Code
of Civil Procedure was dismissed.
The relationship between the parties hereto was landlord and
filed a suit for eviction of the appellant from the suit premises. A prayer for
recovery of arrears of rent was also made. The said suit was filed in the
Original Side of the Delhi High Court. Appellant, indisputably, appeared before
the Delhi High Court. Evidences had been adduced in the matter. The suit was
listed for final hearing on 23.10.2003.
suit, however, consequent upon issuance of a notification enhancing the
pecuniary jurisdiction of the District Courts, was transferred to the Court of
Additional District Judge, Delhi. On 13.2.2004, the learned Additional District
Judge, Delhi passed the following order :
suit received by transfer. It be checked and registered. Issue Court Notice to
parties and their counsels for 15.7.2004"
Appellants contend that no summon was, in fact, issued as directed
by the learned Additional District Judge nor the same was served upon them.
however, stands admitted that respondents had also filed an interlocutory
application on 8.3.2004 purported to be in terms of Order XXXVIII, Rule 5,
Order XXXIX, Rule 1 and Section 151 of the Code of Civil Procedure.
Notice of motion on the said application was issued for service on
the defendant. The said notice was undisputedly served upon the appellants.
however, contend that they were not conversant with the Hindi language and,
thus, were not aware of the contents thereof. The said interlocutory
application came up before the Court on 15.7.2004 on which date, the court
passed the following order :
Proxy Cl of Plaintiff. Court Notice issued to deft No.1. Received after due
service called repeatedly. It is 11.00 AM. Be called at 12.30 PM. There are two
defts in all.
Pr. : Sh. Anil Airi, Adv. For the plff.
also present in person. It is 11.45 AM.
been called repeatedly. The deft. No.1 is absent despite service of the
Submits that deft. No.2 has already been given up on 14.7.95."
suit was, therefore, taken up for ex parte hearing and upon consideration of
the materials brought on record by the plaintiff-respondent, the suit was
decreed. The appellants filed an application for setting aside the said ex
perte decree which by reason of an order dated 14.1.2005 was dismissed, opining
argument of counsel for the JD/applicant could of the suit had been served on
the JD/applicant, therefore, the JD/applicant could not have been proceeded ex
parte in the main suit. I do not agree with him. Had I preponed the date of
hearing and issued notice of the applicant to the JD/applicant for any date
before 15.7.2004, the matter would have been different and in that case, the
absence of the JD/applicant on the date fixed 4 would have resulted in
proceeding ex parte against him so far as the application is concerned.
in the present case, the notice of the applicant had been issued to the
JD/applicant for 15.7.2004 on which the suit was to be taken up.
would like to further add that the application filed by the plaintiff the
notice of which had been served on the JD/applicant, contained each and every
fact stating from the various dates and fact that the suit had lie in the mouth
of the JD/applicant to Say that since, the court notice was not issued for
15.7.2004, therefore, even after served of the application moved by the plaintiff
which was served on the JD/applicant for 15.7.2004, it (defendant) should not
have been proceeded ex parte. The applicant u/o 9 Rule 13 CPC is meritless and
application u/s 144 CPC is also dismissed. Filed be Consigned to record
An appeal preferred there against has been dismissed by the High
Court by reason of the impugned judgment, stating :
the record of the Trial Court it is apparent that this notice for the next date
of hearing fixed before the Trial Court on 15th July, 2004 was duly received
and served upon the appellant on 18th March, 2004. There is also a registered
card which shows that this notice for hearing fixed on 15th July, 2004 was duly
served upon the appellant on 20th March, 2004. A bare perusal of the copy of
the said notice available on the Court shows that the suit number and the name
of the parties has been mentioned.
notice did not anywhere indicate that the notice has been issued only on an
application. The appellant has admitted service of this notice and has not
disputed service of notice. The appellant has himself also enclosed copy of the
notice 5 received by one of its Directors at page 34 of the paper book filed in
this Court. In any case the plea taken by the appellant is hyper technical. The
second proviso under Order IX Rule 13 of Code makes it clear that an ex parte
judgment or decree passed by the court is not liable to be set aside merely on
the ground of irregularity in service if the party had notice of the date of
hearing and had sufficient time to appear. It is clear from the notices and it
is not a case of the appellant that it did have sufficient time to appear
before the Trial Court or that he was not aware of the next date of hearing.
Date of hearing is mentioned in the notice and the notice was served almost
four months before the next date of hearing.
judgment of the Supreme Court in the case of Sushil Kumar (supra) relied upon
by the learned counsel for the appellant does not in any manner support the
contention of the appellant. In the said judgment, the Supreme Court has
noticed distraction between knowledge of mere "pendency of suit" and
knowledge about the `date of hearing'.
present case, as is clear from the facts stated above, the appellant was aware
and lied notice of the `date of hearing' i.e. 15th July, 2004. Rather than
supporting the case of the appellant, the said judgment supports the impugned
Mr. Anoop G. Choudhary, learned senior counsel appearing on behalf
of the appellant, would contend that the learned Trial Judge as also the High
Court committed a serious error in passing the impugned judgments in so far as
they failed to take into consideration that the records of the case
categorically establish that the appellants had never been served with any 6
notice of transfer of the suit or the fact that the suit was placed for hearing
Mr. Devendra Singh, learned counsel appearing on behalf of the
respondent, on the other hand, urged that the suit for eviction having been
filed in the year 1993 and the respondents having already obtained possession
pursuant to the decree passed by the learned Trial Judge, this Court should not
exercise its discretionary jurisdiction under Article 136 of the Constitution
The basic fact of the matter is not in dispute. The appellants
were tenants. A suit for eviction was filed by the respondent before the
original side of the Delhi High Court on 27th March, 1993 which was marked as
Suit No.767 of 1993. The appellants in their written statement took the plea of
their right to continue in the suit premises as statutory tenants.
parties adduced evidences in support of their respective case. The matter was
posted for final argument. It is, at this stage, the suit was transferred. The
fact that the suits had been transferred from the Original Side of the Delhi
High Court to the Court of Additional District Judge was known to all the
litigants. The appellants, indisputably, had not made any endeavour to find out
the date on which the suit was likely to be taken up for hearing.
We would proceed on the basis that Mr. Choudhary is correct in his
submission that notice of transfer of the suit had not been served but, as
indicated hereinbefore, the parties are at ad idem that the respondents also
filed interlocutory application under Order 38 Rule 5 and Order 39 Rule 1 of the
Code of Civil Procedure which had indeed been served. It is also not in dispute
that 15.7.2004 was the date fixed for hearing of both, the interlocutory
applicantion as also the suit.
No sufficient or cogent reason has been assigned by the appellants
as to why despite receipt of the notice, they did not appear before the Court
of the learned Additional District Judge, Delhi. The plea taken before us that
the appellants were not conversant with the Hindi language cannot be accepted.
A copy of the summons produced before us shows that it was both in Hindi as
well as in English language. We, therefore, fail to appreciate as to why such
an incorrect stand had been taken by the appellants.
furthermore not disputed before us that a finding of fact had been arrived at
by the learned Additional District Judge that having regard to the quantum of
rent being above Rs.6,500/- per month, the provisions of the Delhi Rent Control
Act will have no application. It had further been found that the tenancy in
respect of the premises had legally been determined.
Order IX Rule 13 of the Code of Civil Procedure provides for
setting aside ex parte decree passed against the defendants. The Court, in
terms of the aforementioned provision, is entitled to exercise its jurisdiction
subject to its being satisfied that :
summons was not duly served; or
2. he was
prevented by any sufficient cause from appearing when the suit was called on
second proviso appended thereto which was inserted by Act 104 of 1976 reads as
further that no Court shall set aside a decree passed ex parte merely on the
ground that there has been an irregularity in the service of summons, if it is
satisfied that the defendant had notice of the date of hearing and had
sufficient time to appear and answer the plaintiffs claim."
The suit was transferred in the year 2004. It appears that even
before the Delhi High Court, an application filed under Order IX Rule 9 was
dismissed with costs. An appeal preferred thereagainst was also dismissed.
Court by order dated 27.5.2003 directed the appellant to pay arrears of `Use
and Occupation' charges at the rate of Rs.24,000/- per month. The said order
was not complied with. The appellants furthermore 9 did not appear in the suit
with effect from 23.4.2002. Respondents filed an application praying for a
direction upon the appellants to deposit the `Use and Occupation' charges and
on their failure to comply therewith to strike off the defence. An application
was also filed by the respondent to direct the appellants to make payment of
rent. Copies of the said applications were served upon the appellants. But
despite the same, the appellants did not appear before the Court.
The learned counsel appearing on behalf of the respondents,
therefore, in our opinion correctly contended that the sole aim of the
appellants was to delay the disposal of the suit. The respondents, in terms of
the order passed by the Delhi High Court directing the appellants to deposit the
charges for occupying the tenanted premises, became entitled to receive a sum
of Rs.24,00,000/- (Rupees twenty four lacs).
The articles stored in the premises had been put on auction. The
appellants even did not take part in the auction proceedings. Indisputably
possession of the premises in question had been delivered to the respondent.
to the decree passed, a partition has been effected amongst the co- sharers and
the property in question has been physically divided.
10 In a
situation of this nature, we are of the opinion that the appellant is not
entitled to any relief. We may noltice that this Court in Sunil Poddar & Ors.
v. Union Bank of India [(2008) 2 SCC 326], held as under :
It was further stated that summonses were issued to the appellants at the
addresses at which they were earlier served. In fact, according to the
respondent Bank, it was the same address which was given by the appellants
themselves before both the Tribunals and before the High Court. But with a view
to deprive the Bank of the legitimate dues and to delay the proceedings
initiated against them, they did not appear before DRT. Though it was not
necessary for the Bank to serve the appellants once again, they made a prayer
to the Tribunal to get the summonses published in a newspaper which was done
and in Nav Bharat Times, Bombay as well as Nav Bharat Times, Raipur summonses
were published. Nav Bharat Times is having very wide circulation at both the
places i.e. Bombay as well as at Raipur. It was, therefore, not open to the
appellants to contend that they were not subscribing and/or reading a Hindi
newspaper by producing a bill from a newspaper agent. Such a bill can be
obtained from any vendor. No reliance can be placed on such evidence. Moreover,
an extremely important fact which weighed with both the Tribunals as well as
with the High Court was that in an application under Section 22(2)(g) of the
Act for setting aside ex parte order passed by DRT, the appellants have
suppressed material and extremely important fact that they had appeared before
the civil court and had filed written statement. The application proceeded on
the footing as if the appellants were never aware of any proceedings initiated
against them by the plaintiff Bank. DRT was, therefore, wholly right in
dismissing the application and the said order was correctly confirmed by DRAT
and 11 by the High Court. No case can be said to have been made out by the
appellants to interfere with those orders and the appeal deserves to be
Having heard the learned counsel for the parties, in our opinion, the
appellants have not made out any ground on the basis of which the order passed
by DRT, confirmed by DRAT and by the High Court can be set aside. From the
record, it is clearly established that the suit was instituted by the plaintiff
Bank as early as in August 1993. The appellants who were Defendants 7 to 9 were
aware of the proceedings before the civil court. They appeared before the
court, engaged an advocate and filed a written statement. They raised
preliminary objections as also objections on merits. They filed applications
requesting the court to raise certain issues and try them as preliminary
issues. It was, therefore, obligatory on their part to appear before DRT,
Jabalpur when the matter was transferred under the Act. The appellants,
however, failed to do so. We are not impressed by the argument of the learned
counsel for the appellants that they were not aware of the proceedings before
DRT and summonses could not be said to have been duly served. As is clear,
summonses were issued earlier and on the same address, summonses were sought to
be served again after the case was transferred to DRT. There is substance in
the submission of the learned counsel for the respondent Bank that the
appellants had avoided service of summons as they wanted to delay the
Furthermore, it appears that the appellant had taken an incorrect
stand in support of their case that the Managing Director of the appellant was
ill at 12 the relevant time. No such plea had been taken before the learned
For the aforementioned reasons, there is no merit in the appeal.
It is dismissed accordingly with costs. Counsel's fee assessed at Rs.10,000/-.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]
July 31 , 2009.
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